In Memoriam: Alva Mae Groves Another Casualty In the No Win War On Drugs

The Following is printed with the permission of Howard Kieffer of BOPWatch. When are we going to realize that we have got to approach the drug problem in America from a new and more understanding angle???



In Memoriam - Alva Mae Groves - Sentenced to 24 years in prison at at age 72.



Alva Mae Groves

Sentenced to 24 years in prison at age 72

Conspiracy to Possess with Intent to Distribute Cocaine Base

(Ms. Groves passed away on August 9, 2007, still incarcerated in federal
prison. Our condolences and sympathies to her family.)

"When I was arrested I had $1,000.00 in the bank from selling eggs and
candy. Most of it was deposited in change - nickels, dimes and quarters
- and the bankers substantiated this fact. I earned that money one egg
at a time, one soda pop at a time, one candy bar at a time. It wasn't
from selling drugs as the government contends."

I am 86 years old and have been incarcerated since 1994. I was charged
with Conspiracy to Possess with Intent to Distribute and Distributing
Cocaine Base, and I was also charged with possessing a gun. The court
sentenced me to 24 years in prison on these charges.

My real crime, according to today's laws of betrayal, was refusing to
testify against my sons, children of my womb, that were conceived,
birthed and raised with love, of which there were fourteen children in
all - nine girls and six boys. The government said I could have received
a reduction in my sentence if I would have testified, but since I
couldn't do such a thing, prosecutors then said I was a
manager/supervisor in this offense, thereby raising my offense level by
three points and increasing my sentence substantially.

Of course I didn't really understand all this talk about enhancements,
acceptance of responsibility, and so on, that had to do with my
sentencing. But I did understand that since I wouldn't turn against my
own family that I was going to receive a very lengthy prison term. Never
did I dream it would be twenty-five years.

On advice of my attorney, I accepted a deal for a sentence that also had
me signing all appeal rights away. I was also denied a three-level
decrease in my sentence for acceptance of responsibility because my
attorney advised me not to speak without him present. As I say, I didn't
understand all the legal jargon and totally relied on my attorney's
assistance. I still don't understand how one can sign their right to
appeal away when one hasn't even received their sentence. It's all
beyond me. I know I sat there and watched while my whole family was
buried by sentences of thirty years (my daughter Margaret),
seventeen-and- a-half years (my granddaughter Pam) and my other sons, one
who received a natural life. I still don't understand all of it.

When this all began back in 1994, I was 72 years old and lived out in a
trailer in Clayton, North Carolina. That trailer sat on a lot belonging
to my son, William Robert, where I lived with and cared for my two
granddaughters, Fontara (11 years old) and Jasmine (9 years old), my
youngest son's children. The only money I received came from SSI and
what money I could earn selling eggs from my laying hens (I had about
100 chickens). I also cleaned houses when I was able, and sold candy
bars and soft drinks to the kids coming from school in the afternoons.

We lived six miles out of town and there weren't any stores close by. My
children were always welcome at my home and would come to check on me
and help me as they could. My doors were always locked when I was gone,
but my children had keys to get in. The day I was arrested I was working
in my garden at my son's house about five miles from my home. I had
woods around my own home and no place for a garden. I was working in
this garden the day the Sheriff's department came and arrested me. While
I was gardening five miles away, the police broke into my home. They
said they had found drugs, but I don't believe that.

After I was arrested, they wanted me to testify against my son Ricky. I
worked hard all my life and I raised my children to be responsible and
to work for what they wanted. They all knew how I felt about an honest
day's work. If any of my children, including Ricky, were doing anything
less than that, they wouldn't have let know about it because they know
how I feel. If I can tend my chickens, clean houses, and sell soda pops
and candy to make money at 72 years old, they can all work too. I did
the best I could to raise my children and grandchildren. But just as it
is with anyone else's children, I had no control over what they did when
they were grown and on their own.

When I was arrested I had $1,000.00 in the bank from selling eggs and
candy. Most of it was deposited in change -- nickels, dimes and quarters
- and the bankers substantiated this fact. I earned that money one egg
at a time, one soda pop at a time, one candy bar at a time. It wasn't
from selling drugs as the government contends.

Six of my family members are in prison because the government wanted my
son Ricky. They offered me home confinement if I would testify against
him, but he is my son, and I couldn't do that anymore than I could do
anything else that would harm any of my children. When I refused to
testify against Ricky in exchange for home confinement, the police got
mad and said I was the drug kingpin and that my family was selling drugs
for me. I think this was the only way they could justify, or try to
justify, arresting a 72-year-old woman who sold eggs for a living. The
government gave other people all reduced sentences for their statements.
All these people belonged to the government. I've never even seen half
of them.

I have now been in prison for close to eight years. As I unknowingly
signed all my rights to appeal away, the only thing I could do was
petition the President of the United States for a Commutation of
Sentence. From FCI Tallahassee, I was transferred to the Medical
Facility in Carswell, Fort Worth, Texas, due to health problems. My
application for a Commutation of Sentence was submitted while there in
February of 2000. I have since been transferred back here to FCI
Tallahassee and my application is still pending.

I realize everyone has a day to die; death is a fate that will not be
cheated. But I don't want to die in prison. I want to die at home
surrounded by the love of what's left of my family. I do not have enough
years left of my life to finish serving this twenty-four year sentence
as I am already 80 years old. I'm appealing to anyone to write letters
for me to the Pardon Attorney's Office in Washington while my
application is still pending.

Thank you.

Alva Mae Groves 15230-056

Around the Universe...Too Much News!!

Wow it feels like this was a huge week. Here I was in bucolic Woodloch Pines in the Poconos having the time of my life while the world was attacking freedoms and limiting liberty. So lets see what I missed:

1. Judge Okays an "Innocent Pedophile's" Right to Publish Clean Photo's of Children on His Blog.

This article from the ABA tells of how a good scare can completely destroy liberty among those that do not understand freedom.

Self-admitted pedophile Jack McClellan has been going around telling everyone he is ok with sex with little kids and that he is Sexually attracted to these kids... but there are no kids that have stepped up to admit being with him. Hence other than having weird thoughts he hasn't done anything wrong... except to scare the bejesus out of parents in Southern California.

Two parents of youngsters sought to restrain this otherwise homeless sycophant from coming near their children. They sought to stop him from loitering near places where kids gather, and to keep 30 feet away from children. They also sought to stop him from putting and publishing pictures of kids on his website. Now these were not pornographic pictures... these are ANY PICTURES.

I originally didn't think there was a problem with the 30 foot rule, but then again, I was barely awake when I first read this article. Not only is the restraint not limited to a specific child, but it also seems like a prior restraint which could basically keep this guy out of places to eat, receive health care, even use bathroom facilities. The guy sexually idealizes kids, but as far as we can tell hasn't acted on it. This order sets him up for being arrested.

Now the problem is...what if he does. Do you want to be the judge who said we couldn't stop him until he hurt someone?

Evidentially neither did the judge in this case, one Melvin Sandvig of the LA Superior court. The problem of course is that the fear of what this guy could do is juxtaposed against the right of his to both espouse his views and at the same time be allowed the same rights as anyone else with a controversial viewpoint.

What is to stop the Judges from ruling that people who favor guns and gun usage could be effectively banished because they may massacre kids in a school?

Unpopular ideas, even illegal ones, voiced, are not a crime. If we begin to criminalize thought and speech we could easily and quickly become a totalitarian state. Ask anyone who studies Nazi Germany.

This case is not so much about pedophilia as it is about a kind of terrorism. It is actually easier in many ways to defend the active pedophile than it is to go to bat for McClellan. I think the terror of what might happens makes it different. This guy doesn't have the money to oppose the ruling. I wonder if the ACLU will step up to defend his civil rights. It has got to be a tough one. Nevertheless if it were happening here, I would agree to do it. I wouldn't like it, but I'd do it as hard as I can. The constitution, and the law requires it.
Which leads me to my next headline:



2. ABA Journal Ethic's Piece Highlights the Struggle of a Lawyer Who Did the Ethical Thing.

Calling it "The Toughest Call" ABA Journal Editor Mark Hansen recounts the tail of Frank Armani and Francis Belge two assigned counsel who were called on to defend a mass murdering rapist, Robert Garrow.

In conversations with Garrow, the lawyers learned he had killed and raped others and that he knew where bodies of other decedents were. He told them and then they (having the duty to preserve the evidence) went and took pictures of the "graves" and of the dead.

They refused to reveal the information received by them in confidence. They were reviled by the press and by their friends and neighbors for their ethical decision.

Belge went on to leave the practice. Armani slowly rebuilt his reputation in the Syracuse area. Both suffered unfairly for what was clearly the toughest, but the only decision they could make.

This case caused a book "Privileged Information", and a movie "Sworn to Silence." Actor Peter Coyote retells the story of making the film on his website here. If you are interested in the real practice of law, or in ethics, or just want to see a great movie, rent this one. I understand the book (which appears to be out of print) is a fascinating read as well.

By the way, Kudo's on the ABA Journal website . I just found it and I love it!!! Great place to stay up on legal news.

3. House Democrats Wimp Out on FISA Bill: Will Anyone Stand Up and Save the Constitution???

The NY Times reports (here) that the democrat congress refused to stand up to the President once again and agreed to a bill amending the FISA court and to allow greater domestic spying by the executive branch without the benefit of judicial supervision.

The administration wants the right to eavesdrop on conversations that are routed through US routers. They already can eavesdrop on calls not routed through the US. They need a warrant to eavesdrop on calls wholly within the US. But internet calls outside of the US which happen by one of our ISP's are now eligible for warrantless eavesdropping.

Here's the thing. They do not have the ability to differentiate between terror calls and non terror calls. If they listen into non terror calls, they shouldn't be able to use the information, and it should not be stored. I don't trust Gonzoles and company to do that, and apparently neither does anybody else.

Here's another thing. The Dems know that it's unconstitutional, and they had the power to stop it by not bringing it to a vote, They had a bill that was a good one, but the President threatened to veto it. Well that means that the President will be able to go around saying the Democrats refused to act to keep America safe. So they caved in.

Ok maybe we are safe from terror... (maybe) but who will protect us from the Bushies???

4. The Truth About Pot, Weed, Marijuana.

I am not in favor of continuing a drug war which frankly we are losing. I would rather educate and teach, and then tax and let Darwin work out the rest.

In that vein, here and here are two articles that tell you why Pot is bad for you... (1 joint is equal to five cigarettes!!!) Read them. Then try to figure out why you are so suicidal you would introduce this crap into your body.

Consider yourself more educated.

Ok I am back from vacation, lets see if I can get a couple of posts out this week.
TLD

Look Out!!! : A Rant!!

Whenever an idea to "reform" criminal law comes down, there is an abject hue and cry from the defense bar, not because we don't want to improve the system, but because we see every "reform" as another way for the crazy people on the other side of the reform to screw with the wheels of justice. Not to mention what they want to do to our clients.

The newest salvo comes from Ohio, the land that gave us US v. Larry Flynt.

Take Megan's law. A registry where police can better keep track of people who are accused of sex crimes after release from prison. Defense counsel says no. It will be used to give the information to others. They will come and stalk people who have paid their price to society. It will include too many crimes that have nothing to do with sex but have to do with genitalia like prostitution or public lewdness or urinating in public. It will lump people who commit crimes against youngsters with people who have a fight with their girlfriend or who have sex with a minor when they are only a year or two older than the minor.

We are told we worry to much about the defendant's and put innocent victims at risk, then within a few years all our chickens come home to roost.

Now from Ohio, we have the newest in Fall colors, SEX OFFENDER GREEN. That's right, if you've been convicted of any level 3 Megan Law Crime, or you are related to anyone who has been convicted of such crime, or you borrow that car, everyone in the neighborhood, infact everyone on the highway will know it.

Well what's the matter with that? Well for starters less than 1% of all level three sex offenses take place between strangers. In fact most of the time it takes place within families. So now you put family members at risk. At risk for what you ask? How about crazy people who are peeved that the car owner didn't get life or death for their sentence and decide to take it into their own hands. How about the kid who goes into the movie in his dad's car. Can't wait to see the look on his date's father's face!! Or the guy who finally finds a job, works and then comes out to find his car demolished by vigilantes. You know, after a while, enough is really enough. Especially when it is clear that IT DOESN'T HELP!!

It is a vicious cycle. Politicians can't help but pander. It is in their makeup. They can't help but take advantage of a constituency that has a little voice, to make a bigger constituency happy. They are too weak of mind, or morals, to say "we will not abuse one group for another." And so we get:

Genarlow Wilson, locked up for 10 years for having oral sex with a girl 2 years younger than he.

Dopey politicians who want to declare prostitution which is a crime between consenting adults a sex crime.

Even dumber yet there is a politician who wants to make urinating in public and other public lewdness a sex crime.

Then we have even more lilied liver idiots who are gathering the homeless sex abuser
and herding them into trailers and moving them from place to place so nobody has too many of them in the neighborhood. Here's an idea, if you don't like the neighborhood, take a second job, make more money and MOVE. Don't tell a person who has made enough money to live somewhere that he can't live where he wants.

I would love to find a person who has been banished by some stupid anti sex offender zoning statute to sue the rear off some idiot county for a violation of his fair housing right.

We have kids going to jail for showing Playboy magazine to a younger kid. I'm not talking showing a centerfold to a 5 year old by a 19 year old, I am talking about a 16 year old showing a centerfold to a 14 year old. Hell the same kid is watching "R" rated movies on cable and on the internet. He is seeing as much as he wants to see. But if we have the chance to make it a sex crime... well then who cares.

How is it, that when 17 year old Genarlow Wilson has consensual oral sex with a 15 year old he is some crazed sex offender and treated like an adult, but when 24 year old Monica Lewinsky has oral sex with Bill Clinton she is some kind of Ing'enue.

Maybe it is my mood, but what we as a general public do not know about sex offenders could fill a book. So we listen to the potbangers and let them work us up into a mass hysteria until the people who do know about these things get tired of shouting over the masses. We mess it up really bad and then we wonder how we were lead astray. We ask no questions. We accept the garbage we are fed and then wonder why we are screwed up.

Oprah Winfrey says sex offenders can't be reformed! Great, who the hell gave Oprah a PhD. in anything besides eating? She was abused, so she is an expert? I had appendicitis and had an appendectomy, does that make me a surgeon?
We ignore what we don't want to hear. Instead of asking our own questions we just accept the pap that we are fed and then wait for more.

The Internet has more information on it than any library I have ever seen. We can get our answers right hear with the help of Google or Yahoo. But we won't. We will use it to listen to music, write a report, and watch a video, and then think we are all technological. Until we add the ability to reason critically, and to use the Internet for something other than porn and politics, all we have is a more expensive TV.

Don't Give Up, Don't EVER Give Up.

The words spoken in the title, were spoken to me, and to millions of others, by the great, late Jimmy Valvano a basketball coach, a sportscaster, a cancer victim, a son, brother,father,and husband. Jim's fight with cancer, is the reason there is a Jimmy V Foundation for Cancer Research.

There is little a mere mortal such as I can give to the words given to Valvano from the Lord above. I am linking to both the words and the video.

Tonight the ESPY's are on and that marks in a sense the 15th anniversary of these words. I commend this paragraph to you all. These words are the words that Jimmy left us with. They are the words of his parents and my own. They are the words my wife, my sons and I as well as many who face the worst that life has to offer everyday live by to get to another day:

"I just got one last thing, I urge all of you, all of you, to enjoy your life, the precious moments you have. To spend each day with some laughter and some thought, to get you're emotions going. To be enthusiastic every day and [as] Ralph Waldo Emerson said, "Nothing great could be accomplished without enthusiasm" -- to keep your dreams alive in spite of problems whatever you have. The ability to be able to work hard for your dreams to come true, to become a reality."

Enjoy, Be Inspired and Never Ever Give Up!

Crazy Texas School Decision; Pass the Second Chance Act; Reduce Sex Abuse...Stop watching the Abusers; A Favorite Blogger Returns...With Some Sad News

Oy So much to blog, So little time...

I. Child Writes "I Love You" on a Wall in School, Gets Kicked Out at Taxpayers Expense! What's Wrong with this Picture???
Well this story
caught my eye. Twelve year old girl falls for Fifteen year old boy, professes her love with a blue magic marker, gets a year in Alternative school.
Result? She still loves boy, another 12 year old will do the same thing because 12 year olds don't really understand deterrence, and TAXPAYERS IN TEXAS GET SCREWED!!

She is 12. She wrote on a wall. For goodness sakes give her a scrub brush and make her work to take it and any other graffiti in the school down. Make her write on the blackboard 100 times "I will not profess my love thru graffiti." Do not send her to a school for alternative students which costs the school taxpayer more money because you cannot think of a way of disciplining a kid. The school district thinks it has no choice, because Texas has a law that governs this type of thing...That Lawyer Dude says, "NEVER LET SCHOOLS BE RUN BY STATE OR FEDERAL GOVERNMENTS UNLESS THEY INTEND TO PAY FOR EVERYTHING."
The state Legislator says the district is misconstruing the bill. Maybe. It seems like it is the adults who need a time-out here.

II. Let's Advise Congress to Pass the Second Chance Act.


This one seems like a no-brainer, but of course when dealing with the US Congress, that is usually a huge problem.

Query:
"What happens when you take a drug addicted kid at age 20 and stick him in jail for oh say 12 years?"
Answer:
You get a 32 year-old drug addict who can't find a job. He goes back to drugs, he can't pay for them so he commits a crime to get the money to pay for the drugs and he goes back to jail...and back to costing THE TAXPAYERS MONEY. (If you are astute, you may be discerning a commonality of thought in the last story and this one.)
Enter the Second Chance Act. It provides funds for drug rehabilitation, job training, education, housing and some of the other things that help a person to reenter society. Seems like a good idea; We just paid to teach him a lesson, it would be a good thing if we now gave him a chance to succeed. After all isn't that what we did for Germany and Japan??

Well hold on. This act which makes imminent good sense, because it will increase the tax rolls while decreasing recidivism which decreases insurance rates, police costs and further jail and prison costs is accused in some quarters of being like a "handout" for people convicted of crime. I can here people saying it now, "MY SON THE VICTIM DIDN'T GET A CHANCE FOR A FREE EDUCATION." Let's continue to mix apples and oranges and call it a criminal justice system.

Let us stop the so-called victim's rights people right now. What happens to an individual victim, is addressed by the civil law. What happens to society is what is the concern of the Penal law. We have a bad habit of mixing the streams. "Don't cross the streams!!" The Penal Law and the Corrections Law needs to return people to our society that can contribute to it, not take away more. We started this "victims advocacy" crap in the 1980's and we have now become the largest prison state in the world. It is time to put "society" as a whole back on the prosecutions mind. Of course victims want vengeance. They've been victimized. Ask them if they want the same level of revenge if they have to pay the cost for the revenge!

Another more valid attack on the bill is that, constitutionally there seems to be no role for the federal government in prisoner re-entry. This is the issue that killed the bill the last time it came around for a vote. Sen Thomas Coburn (R-KS) put a hold on the bill which killed it despite the fact that he was the only person in the US Senate who wanted the hold.

In response, I think the funds should be given to only Federal prison programs and applied by the states to help the re-entry of Federal prisoners, except for the Pell grant restoration provisions of the bill which should be open to everyone (though I can make a really good case that giving anyone Pell grants violates the Constitution.)The Second Chance Act will teach redicient states how to help their re-entry issues.

Ok so if you can agree that after someone pays their debt to society, it would be a good idea if society offered them a chance to improve their success rate outside of Hells walls, then go to this website for FAMM and write to your people in Washington DC.

III. Want to Reduce SEX CRIME Recidivism? Stop Watching the Abusers So Closely.

It is a counter intuitive argument and maybe even politically risky, but according to policy reports, you should not supervise a low risk sexual offender the way you would a high risk one. If you do, you increase the chance he will act out. I've been saying this stuff for years, it is about time someone recognized the different types of sex offenders. We cannot keep trying to solve big problems with cookie cutter solutions. Sex offender rehabilitation is not one size fits all. You can read the post at Grits for Breakfast.

IV. Return of "Will Work for Favorable Dicta" is Welcomed but Sad.

There was a young law student blogger whose work I really enjoyed. After graduating from law school, she took a non traditional legal job in the great NW and was loving it. She thought it best to rest from Blogging lest she jeopardize her new job. We haven't heard from her in a while. She goes by the handle Energy Spatula.

She returned to blogging this week and She has returned with the sad news that she is sick. She has an auto immune disease, Multiple Sclerosis MS. She approaches the issue with her usual good humor and bravery. I truly believe that E-Spat as we know her will be a tremendous voice for people with auto immune disease. You cannot help but love her. Please add WWFD to your RSS feed, and keep lil E-Spat in your thoughts and prayers. I know I will.

Good Night.

STIFLE HIM ARLENE: Senator Spector Introduces a Bill to Ban the Use of Presidential Signing Statements in Court Decisions

Does any elected official in Washington DC actually read the US Constitution???

Senator Arlene Spector (R-Pa.) has introduced a bill to ban Courts from using Presidential signing statements to reflect part of the history of any law.
You can access a copy of the proposal here. It's only 2 pages long and worth the read.


Far be it from me to not understand where the good Senator is coming from. I hate Bush's stupid self serving signing statements too. Screwing with the delicate balance of Powers set up by the US Constitution is not the way to fix it however.
The bill is of course DOA when it hits the oval office. Moreover, it should be.
This is an example of over-kill and it is Constitutionally unexceptable.

First it says that the Supreme Court (hereinafter SCOTUS) actually all courts, are banned from referencing Presidential signing statements or relying on them in determining cases. The Constitution does not require that and it is not a good precedent to allow one branch of government to officially silence another branch of government.

Secondly the bill would give Congress the right to expedite matters in the courts and to file amicus briefs through the House or Senate Counsel offices. These briefs must be accepted by the court. Nope, the cases in controversy in the courts belong to the litigants. Amicus approval should in the first instance be up to them. If they unreasonably withhold that approval, or the court thinks it would help reach a better determination if other parties weigh in, then it may ask for or accept these briefs.

Finally, Congress now also wants the right to file a clarifing statement to any case where a court wants to interpret the law. It will come up with a statement and if it passes by a majority vote it will be used to clarify what Congress meant when it passed the law. Now that should really leave laws in limbo.

The purpose of law and precedent is so people can rely on the law in making everyday decisions. Can you imagine what would happen if everytime Congress changed hands, they could "clarify" what the Congress that passed a law meant when it passed the law. Besides isn't that what the court does. Doesn't the fact that there are no judicial terms mean in part that courts is the branch with longevity? Isn't that one of the purposes of life terms?

When a court interprets a law, it can use legislative history to help interpret what Congress meant when the law passed, and it should likewise have the benefit of the President's thoughts on the matter, at the time the law was enacted. The court does not have permission to check its brain at the door however. It must use these tools as it sees fit. Litigants can site to them and they too should be able to cite the statements of Congressmen and Senators as well as Presidents. What are we saying to our courts when we tell them they can cite foreign law and cases but not the words of our own popularly elected President???

Some scholars have been bothered that when President Bush signs a Law, his signing statements are often orders to his executive branch as to how he wants the law enforced. His statements often cherry pick the things he likes about the bill while objecting and trying to accept himself from the parts he doesn't like. I agree with these scholars that the President is wrong to do that. He should enforce all the laws. The remedy however should not be to ban his ideas about a piece of legislation. It is instead to Impeach him if they think he is failing to do his job.

That is not an easy thing to do, but it is the appropriate check on Presidents that refuse to enforce the law. Trying to take back power through unconstitutional means is both overkill and bad make that lazy lawmaking.

President Bush Finally Figures Out a Way to Use the Constitution Rather Than Go Around It.

I have been reading the stories about the Republican Right and the push for a pardon of I. Scooter Libby. In fact, I have no problem with Libby getting a sentence commutation or for that fact even a Presidential pardon. Just as I had no problem with Clinton pardoning his brother or Mark Rich. It is in the prerogative of the executive. In fact it is one of the few things Bush has done where he hasn't overstepped his bounds.

People need to get a grip. I have heard how he is ignoring the advice of his Justice Dept. Hell, ever since Ashcroft and Gonzales came to town no body else pays it any mind, why should Bush. Besides, what makes anybody think that this Justice Dept. couldn't find a way to agree with the decision if the President told them too.

I think a Presidential pardon, any Presidential pardon, is a good thing. Now you may say that is because I am a criminal defense attorney. You would be wrong however. It is because that being a Constitutionalist, I believe that the Presidential pardon is a check on the judiciary that a President should use anytime he feels it represents his vision of law enforcement. One has to remember that the President is the spokesman for the majority of the people who vote in this land. He is their voice. The court is a check on the majority making sure the majority does not over run a minority and hurt it.

Now it is an important difference. The Constitution allows the Executive to pardon people, but not to enslave them. It cannot use its power to ruin but to free. Even if he were to allow murders or terrorists to be pardoned, he would be doing so as the voice of the majority of the voters, those people who voted for him. As a practical matter that will not happen, but that it could means that the public has a way to overrule the court. It keeps America from becoming a slave to the courts.

Assume for a moment a wave of anti-Christians take over the power of the executive and legislative branches. Assume further that they then persecute the leaders of Christianity. Christians can revolt or they can go to the polls and vote them out in an orderly fashion. Thereafter, a new President can go back and right the wrongs as he sees fit, and as his supporters see fit. Pardons are a pretty good check, the problem with Libby is that he represents things that others find aborhent.

Imagine the outbreak of support by the Neo-Con right and Jewish Americans if Jonathan Pollard were to be pardoned. Imagine how those same people would have felt if Clinton had pardoned Susan McDougal.

Pardons are the one thing a President does not need approval to do. He has the Constitutional right to do as he pleases and we as a people give him that right in the hopes he wields it the way a majority of us would have. SO pardon and commute away Mr. President. Maybe some of your Judicial appointees will see this as what you mean as compassionate conservatism. Maybe they will understand that the Guidelines are not always presumptively reasonable, just like you did for your pal Scooter, and they will start finding more Booker/FanFan reasons to let others have a chance. Who knows, maybe we will start using jail less as a deterrent and less as a punishment and more just to keep society safe, while sending the rest to programs and sentences that will rehabilitate and keep people working and supporting their families instead of going to prison where they will surely negatively affect their children's ability to stop the cycle of crime.

Pardon Me???

If I started to link to all the bloggers/blawggers and others who are writing about the sentence commutation of I. "Scooter" Libby, I would be up all night. I will therefore give one link, to my friend Professor Ellen Podgor whose analysis is spot on for what we as lawyers or professors have to now consider for our clients who are in a similar situation as Libby. Another link is saved for my friend Prof. Doug Berman who is using the issue to teach others how to give their clients a better chance at a fair sentence by using the case in their sentencing memorandums.

What is the State of The First Amendment in Schools?

As most of you know by now, the Supreme Court ruled in favor of the school district in Fredrick v. Morse (or in the Supreme Court case Morse v. Fredricks A/K/A the "BONG HITS FOR JESUS" Case)the SCOTUS ruled that students free speech rights could be curtailed when their message inspires drug use (See dissent by Stevens.)Now here is the interesting thing: The majority opinion does not specifically limit the language to illegal drug use. Hence a student rally to raise funds for NORML could conceivable run afoul of the majority opinion... STOP RIGHT THERE!!
Justice Alito, recognizing the right students have to Political Speech, along with Justice Kennedy filed a concurrence that says that the speech has to advocate illegal drug use. Presumably if the issue were so framed then Alito would have been in the majority as well with the 3.5 dissenting votes (see Justice Bryers decision) his and Justice Anthony Kennedy.

A few thoughts. First, I wrote that I would have allowed the speech because I did not feel it was a school matter. If the issue had been framed that it was a school matter, then I would have ruled the speech unprotected because "BONG HITS FOR JESUS" is a nonsensical phrase and conveys no thought (which was admitted by Fredrick's who was just looking to get on TV and to piss off principal Morse.)In a large sense then, while I wouldn't get on the 9th circuit, maybe I am qualified to be on SCOTUS!!

Secondly does it bother anybody that Justice Thomas cannot find any precedent for TINKER v. DES MOINES SCHOOL DIST., 393 U.S. 503 (1969) in the constitution. Damn. The First Amendment says "Congress shall make NO LAW...abridging the Freedom of Speech..." and the Fourteenth Amendment applies it to the states. I don't like reading things into the Constitution but I don't like reading them out or ignoring them either. I do not buy that just because 19th century American schools didn't think to enforce speech rights doesn't mean that someone construing the Constitution didn't think the rights existed. The issue never faced the SCOTUS.

I also find that while historically one could point to the in loco parentis doctrine, that has been withered away by exactly the process Thomas advocates, the votes of parents. Today's parents have shot down a lot of rules including dress and even speech rules through both litigation and election of like minded school boards. Critical thinking in education (which requires that students think and object and support points etc) are all part of today's social studies curriculum . The hodgepodge of thinking on 1st Amendment issues that Thomas J. objects to, is far more possible under his standard than that of the Tinker standard. To the extent that Justice Thomas sees a need to amend the Constitution to include School speech in the phrase Congress shall make no law... I do not think that it either is anti originalist nor inappropriate to state that NO meant NO even in the 19th century, even though SCOTUS was not asked.

Finally, as if to put an exclamation point to Justice Alito's concurrence, SCOTUS on Friday issued a rebuke to a school that banned a shirt worn by a student that had pictures of Cocaine, and a martini glass and referred to President Bush as a coke snorting, weed smoking, alcoholic. (See this story and this post) The Second Circuit had ruled against the Vermont School district and the SCOTUS refused to review the decision. The case is Guiles v. Marineau, 461 F.3d 320 (2d Cir. 2006), cert. denied sub nom. Marineau v. Guiles, 75 USLW 3313 (U.S. June 29, 2007) (No. 06-757).

So to sum up my opinion of the law on School speech, Tinker is still good law. Just make sure your message is political speech and can easily be understood to be political, and keep the nonsense to a minimum.

Where Have You Been Tony Boy???

Well I doubt very much that this blog still has any readers, but for those who may happen onto it, I thought I might explain, where I have been.

I have been struggling for a while to find my voice on the Blogosphere. I started this blog, in part to attract attention to my ideas about the law. I also wanted to attract clients to my law firm. Over the years, the blog changed and it became a voice for my personal views about the status of the law, and how I feel about things. To that end, I found it very fulfilling. To the end that it did not analyze cases and talk about trial practice and the like, it left much to be desired.

I needed to have someplace to do both things. Hence I started our sister blog, Long Island (Criminal)Trial Law. Well that was good, except that writing two blogs while practicing law and dealing with a home life that includes a chronically ill family member, and marketing a practice, was to say the least driving me insane.

I have played around with different options, and I think that I have decided, at least for now, to return to blogging here. I will leave everything I have on That Lawyer Dude and for now "mothball" LI(C)TL and The Positive Review. That means that this formerly polemic blog, is going to be a lot more, and therefore also a lot less.

I am going to try to make more use of the Labels option, and I will be changing things as I go along, who knows maybe we will also pick up a reader or two. Either way, this blog, counter to what all my marketing Guru's have to say, is going to be for me. If you want to stop by, read it, comment, anything else, go ahead. If I am the only on who stops by, well then that is ok too. I need this outlet far more than I was aware I did. For those who are looking for the legal advice I used to dispense at my other blog, you can look here, or you can look at Lawguru.com I am posting there now too. In the meantime, I have to figure out, where to start, I mean there's been Scooter, and Paris, and more Bong Hits and Sentencing reform and ... well you get my drift. So without further adieu:

Is This How YOU Want Police To Spend Your Tax Dollars?

I am involved in a really difficult matter in Brooklyn. It borders on heartbreaking. I represent a guy who is just an average Joe. He works hard, earns a decent but not great living and takes care of his family. Everybody likes this guy in the neighborhood. He wakes up everyday, plays with his kids, checks on his Father and Mother, gives rides to Seniors in the area who have to go to the hospital and then goes off to drive his limo for rich people through out New York City. He works out of a garage that books drivers and cars for airport runs etc.

He is in this country legally. He was sponsored with his brothers,sisters and parents by an aunt and her son. Now here is the rub, the son, my clients cousin is a drug addled HIV positive crackhead. Nevertheless, my client owes his whole life to these two people. If not for them, he is still in Haiti making Three Hundred Ninety Dollars instead of a week.

Now the son of my client's family's benefactor, gets into trouble with the law. Facing a long time in jail, which would mean he dies on the inside, the police and the DA offer him an out. Help us buy guns and drugs and we will let you stay on the street.

So the idiot approaches his low life friends. None will help him because they can smell a set up from a mile away. He asks my client for help, but my client will not find him drugs. A while later, he begs my client to help him find a gun for a "Friend" who needs protection. My client already felt bad about not helping this guy put himself out of his misery with the drugs, so in fact he helps him by picking up a gun and giving it to the kid to "sell." Of course it is not a real sale, the cops bought it.

The cousin thanks my client and tells him he got a couple of hundred dollars for the gun. He asks him if he can get some more. My client allegedly tells him sure, people all over NY are selling these things. Anybody who really wants one can buy one almost anywhere in Harlem the Bronx Brooklyn the lower East side, Flushing. The cousin has only months to live, his AIDS is full blown. So even though he knows in his heart that the kid is using the money he gets for drugs he tells himself he is eating with it, and gets him another 2 guns to sell

Now I should point out that though deadly, these weapons are garbage. Not a decent weapon in the whole group. But the guy who pays wants a weapon so...

The cousin dies. Does that stop the cops? No. They go back to our client and call him over and over and over, at work at home at church, yelling for him to get them another gun. He finally relents after months of badgering. Then once more a few months later. Same scenario, same reticence, same result. Finally they come once more. He is less and less cooperative, They figure he's done, so they bust him. He is looking at ridiculous time if he blows trial. On the other hand, would he have even been here at all if the police had demanded that the cousin give them someone who was a KNOWN gun dealer??? Would this have happened if the client had not been tight with the cousin, and felt like he owed the guy for his whole existance?

The whole neighborhood, some 500+ people have signed a petition asking the judge not to incarcerate this guy. 20 people almost all immigrants themselves have written the court. Still this is going to be tough. Of course, if they were serious about getting these guns off the street, all they had to do was offer the &600 they were offering my client to buy the guns. After all there wasn't one there that they couldn't have bought themselves for half the price.

So my question for you dear reader is:
Is this how you want your Police Department to spend your tax dollar? Is it good police work to get someone who otherwise would never commit a crime to commit one so that you can get a couple of pea shooters off the street? Let me know what you think I ought to tell the judge in a couple of weeks when I go back to him to enter a plea.

"The Attorney General And The FBI Are Part Of The Problem, And They Cannot Be Trusted To Be Part Of The Solution,"

The words above belong to ACLU Executive Director Anthony Romero. The sentiment behind them speak for me. It is time we drop this national charade and stop the destruction of the greatest piece of political writing the world has ever known. It is time to deconstruct the "Patriot Act" which was never patriotic to begin with. It is time we ask Attorney General Alberto Gonzales to stop acting on our behalf and step down NOW. FBI Director Mueller sadly must go too. This was on their watch. They do not get the privilege of cleaning it up or more cynically white washing it. Read the ACLU analysis of the report here

What the "Just Us" Department did (thats in justice for Just us) was lie, purposely under reported abuses, obtained personal information on thousands THOUSANDS of AMERICANS without cause and without permission. The excuse? Not enough training. Come on. To be an FBI agent you have to be a lawyer or an accountant or have some other professional background. These guys are not high school drop outs. They know how to read regulations and they know when they are being pressured by higher ups for information. THEY SPIED ON AMERICANS!!! Now Gonzales wants to remedy it with an apology and a few firings??? He wants us to trust him that he will make it better? I no longer trust this Attorney General with anything that effects my liberty interest, or any other interest of mine either. He is so married to the neo-con agenda that he has no idea how to check this or fix it. Let him go chase after dogs, people are far too scary for him.

Washington has a love hate relationship with liberty and freedom. They love to stand on the Capitol steps and talk about it. They love to quote Jefferson and Adams, however they are so uncomfortable about the idea that everyone of us gets it.
This is not a new thing. If you look at the original way we granted freedom it is right in the documents themselves. The constitution and the Declaration of Independence. Over the years there would be a public outrage and then there would be a loosening of the reigns of tyranny. The time is coming again.

Our "leaders" co-opted our privacy without justification. They forced our bankers and telephone companies to give up our information. Internet providers and credit card companies, our employers and other financial participants in our lives were all told they had to give up our records if asked. That is what our legislators agreed to when they passed the "Patsyriot act." They were able to do this without our knowledge because the act gave them permission to do it "administratively." I want to personally thank the gutless Congressman and Senators who voted away their obligation to act like a check on the administrations action. Who are so distrustful of Judges that they took away the "balance" the judiciary gives to the discretion of the executive. I have looked at who supported the act. I will remember you in '08 if you are still around.


It is time we Americans start to stand up for liberty. If we don't start getting more personally possessive of it, it may not be here for much longer.

Ripped From The Headlines

A few issues “Ripped From The Headlines.”

I. Credit Card Fraud.
From May It Please The Court.
we learn that cash register receipts may no longer display your entire credit card number. These receipts may only show THE LAST FOUR(4)DIGITS of the credit card number. They also may not include your card's expiration date. If they show more than that it is a violation of the Fair Faith and Credit Transaction Act and they can be in BIG TROUBLE!!

Why you may be asking? Because "penalties range up to $1,000 per incident, and the suits can be filed as class actions, multiplying the penalties dramatically."In other words vendors who are not in compliance as of January 2007 are at risk of lawsuits. Are you in compliance? Have you been a "victim" of a violation? Time to check out those receipts.

II. Dallas Tx. District Attorney Seems To Care About Innocents Being Convicted..

Now here is what appears to be a prosecutor with both an interest in justice and a brain. Rather than waste money from his budget trying to keep evidence secret and protect possibly faulty convictions, he is willing to open his files to the Texas Tech Law School Innocence Project. Now people who claim that the have been convicted of crimes wrongfully will have the chance to have their claims investigated by a private organization which can bring their findings to the DA’s office or to court. In the long run it will save his county money and do a service to the community (and to the wrongfully accused if any exist there.) Story here
HatTip: Crim Prof Blog.

III. Pace University Law School institutes a Return to Practice Program With The Westchester Women's Bar Association..

Interesting new program over at Pace Law School. It is designed to help Lawyer-Parents who are returning to the workforce to brush up on what they may have missed while performing familial duties. It will also be open to attorneys who have found other alternate career opportunities. I can foresee a day where a smart law school will open a program like this for disbarred and suspended attorney’s and it will be required as part of their application to be restored to practice. The course could have a heavy ethics concentration as well as small business skills building. The program is described as follows:
“’New Directions,’ set for a May 21 launch, is a two-semester certificate program of study and externship for attorneys who have temporarily left practice and now want to return. “ Click here to find a form to get more information.

IV. Politics and Prosecutors..
Over the last 2 months Eight (8) Federal prosecutors have been fired by the Bush Administration. Some suspected politics at work. In this articleit appears Senator Pete Dominici had it in for a guy he formerly supported because he wasn't indicting democrats fast enough. What ever the reason, Federal prosecutors, (US Attorneys) serve at the President's discretion. President Bush has a right to fire whomever he wants. What he does not have, however, is the right to fill the positions that open up with out the advice and consent of the Senate. Right now, he fills the spots with interim people who never get to a vote up or down in the Senate. That is both a dereliction of the Constitution and a petty way to run government. Worse than that, it appears that the senator and the President were trying to rig prosecutions for political reasons. This type of behavior calls into question the fairness of the prosecutor's function. It further indicts the entire criminal justice system. Congress should be looking into that as well as the clear violation of the spirit and possible the words of the Constitution.

V. How do Courts Work. .
Here is a quick piece on how courts are set up within the states and federal government. It explains jurisdiction and how to tell which court hears what type of case. It is a good teaching tool.

VI. A Little TOO Friendly Skies: Airline Employee Fondles Sleeping Passenger on Flight.

Seems a maintenance man working for Northwest airlines boarded a plane from Tacoma to Minneapolis. He then allegedly waited for a female passenger to fall asleep and while the passenger slept, he lifted her shirt in an attempt to fondle her. When she awoke from feeling the material of the shirt move, he got up from the seat next to her and went elsewhere in the plane. The passenger alerted an attendant and the FBI met the flight in Minneapolis. He is being held. Article here.

Ok that's it for now.

A Weekend Filled With Bloggable Fun: What I Found Interesting

I. Criminalizing Domain Name Sales to Terrorists
CyberCrime Law has this post about a well-meaning but ultimately meaningless proposal in the NY State Legislature. The bill seeks to ban the selling of domain names to terrorist organizations. Seems to me that this is something that the NY State Legislature has no control over. In addition as the post points out all the legislation will do is make it more expensive for honest people to get domain names, the terrorists are not going to provide the information to give the law any teeth. Nice try Albany.

II.State Liquor Authority Strips SCORES Of Liquor License.

SCORES is a strip club. It is very large as these things go and has many employees. A couple of the women working there were arrested a couple of weeks ago for prostitution. I have represented women and clubs in these "stings" by vice. For the most part I think the cops entrap and lie about their "success" rate. To begin, the amounts they allegedly offer these woman is far less than they could get in an escort service, and if they offered that amount, then there should be serious concerns that the cops are in fact entrapping these women. That assumes that the girls involved do not know the cops are cops (highly unlikely they can pick out a cop, a lawyer, an out of town businessman or a
high roller as soon as they walk in the door)and that they are saying yes (also highly unlikely as a SCORES girl can make an easy thousand plus a night, and will blow the gig if found "doing extras." Then after the girls are arrested, even if the woman do not plead or are found guilty, the State Liquor Authority pulls the liquor license. The whole deal smells bad.
The whole sting, revoke liquor license is a waste of taxpayer’s money. It would be better to see the NY State Department of Taxation and Finance in the club making sure that everyone is paying the correct tax bill.

III.New York's New Comptroller Moves to Train Fire Commissioners

Tom DiNapoli has just been tapped to be the state's new Comptroller. His selection was criticized by our new Governor Elliot Spitzer as being politically motivated (Unlike Spitzer's recent elevation of popular Republican State Senator Mike Balboni to head up the state's Homeland Security Department...)
In his first move on the job, DiNapoli has outlined his plans to better train Fire Commissioners on how to watch over the public fisc. This is no small endeavor. To begin Fire Districts have very large budgets. There is little oversight of these organizations and the media ignores them until there is a scandal then everyone is jumping on these volunteers. DiNapoli is offering a structured training program to educate these people on how to oversee a budget, spending and accounting. It could be a great program which reduces waste if it is done right... IF.

IV.Delta Zeta Sorority Discriminates Against The Socially Awkward.
I hope you can link this story without subscribing. It is about a national sorority coming onto the campus of DePauw University and throwing out all the non pretty non skinny geeky girls in the house (not to mention the racial minorities and the disabled) so that they could get more popular girls into the sorority.
OK we have all heard of this stereotype through the movies (Animal House for instance)and have thought it a throw back to the 50's or a gross overstatement. Clearly it isn't. What makes this worse however, is that the women doing the throwing out are adults. Not members of the house, Alumnae and leaders.
Now some of you are saying, "what did you expect from an elitist organization like a sorority" however I have to say that this is not what I have witnessed on the campus' I have visited from any national fraternity or sorority.
I think this sorority ought to be blacklisted. I know I would not let a child of mine join it anywhere it has a chapter.

V.Two Long Island Attorney's Arrested For Mortgage Fraud.
This post at the Mortgage Fraud Blog reports on two NY lawyers, one from Long Island one from Brooklyn who allegedly helped swindle a woman out of her home.
I do not know if the government has the proof necessary to convict these people of what they accuse them of, however it seems to me that a lot of this could have been avoided if Credit scores were free and easy to get. I do not want to get into the whole scam here, suffice it to say, that if you are in danger of losing your home, you can do things to protect it by seeing a bankruptcy attorney. Straw buyers are not the way to go. If you are going to work with a so called investor, be sure that you have a retainer with your attorney, you have a rental agreement with the right to repurchase and of first refusal or better for a specified amount, and that the entire agreement is spelled out and made a part of the filed documents.

VI.Lawyer Set Up in Sting Refuses the Bait, Bar Outraged at Police and Court for Authorizing the Caper.
The Legal Reader Blog is reporting that a leading Brattleboro VT. criminal defense attorney was stung by local police who tried to get her to help obstruct governmental administration and tamper with evidence. A cop pretending to be a witness in a domestic violence case tried to get attorney Eileen Hongisto to tell him to deny service of process and to not come to trial if subpoenaed. A judge signed off on the caper. Lawyers including the prosecutor are shocked. What was the judge thinking? What did the cops go to her with? I think Hongisto ought to sue for libel and see just what they were up to.
As for the rest of us, it is time to remember it is open season on lawyers. Practice smart.

That's it for now

The Land of the Sheep and the Home of the Frightened

I spent yesterday afternoon on Capitol Hill. I used to love that place. The Hill was to me, the epitome of Freedom, and Liberty. With street names like “Independence” and “Constitution” I could breathe the air there, and be infused with the breath of vigor that drove Clay and Webster, Lincoln and Truman, JFK and Goldwater. NO MORE. It has become a sad and scared place where armed men and women walk and direct and herd us. In the name of protecting our freedoms, they steal them. It was unnerving; it was frustrating; it was, in a word... sad.

I am visiting the Capitol with an intern from my office. She is a high school senior. She is nervous, going to meet a congressional aide. She hopes to inspire the aide to work on a legislative solution to a concern of her's that she is working on in my office. She is unsure of herself, unaware that the seat of power our Capitol is actually "her" home. I am explaining to her, how I first came to Washington as a 16 year old high school kid. I was in a Presidential Classroom for Young Americans Program. I had my run of the Capitol. Riding the Senate underground trolley; walking the basement catacombs to legislative offices for meetings with my congressman and senators. Pretty heady stuff, for a kid who grew up in a neighborhood that still had farms on it.

In college, I frequently went up to the hill to see pols that I was working for, or with, on campaigns or legislation. I had already been an aide in the state house. I was wise now to the ways of power. After law school I spent significant time on the Hill advocating for better, fairer, laws for America. I spent hours underground at the Capitol, buttonholing Congressmen and walking with them to votes. Talking to them about Scleroderma funding or pending criminal law legislation.

I told Lara there was nothing to worry about. The Capitol was a stately and grand building so as to scare off foreign powers who may want to invade us. It was a home to us. We could walk its corridors and breathe in the liberty giving air.

We entered through the Cannon Building entrance. There we were met by three guards and a very sensitive magnetometer, that required I disrobe (or at least de-shoe) to get through it. Then we stopped at a congressional office and after what I consider to be a good meeting with the aide to Congressman Steve Israel, I thought we would go to the Capitol Rotunda to see the place where the Supreme Court once met, and where Presidents lay in state. We would take pictures next to the statue of one of the guys who represents NY in Statuary Hall.

As we came to the basement of the Cannon Building, we proceeded down the hall to the rotunda to get to the underground hallway that leads to the Capitol building; you know the building whose top is capped with "The Statute of Freedom". There was, at the entrance another Magnetometer and 4 more guards. Ok, I am not sure why, but I was more than willing to be stripped searched to get to the home of liberty. All of a sudden I was approached by a genial elderly lady in a red jacket.

"Sir, are you on a tour or with a staff member?" "No we are going to see the Capitol. I have been there often enough that I can give the tour. But thank you anyway" I replied, genially.

"Sir, You may not travel through the tunnel to the Capitol unless you are on an authorized tour or in the company of a staffer." She said with sharpness to her tone.

"Why not? I've been doing it for 30 plus years now." I said incredulously.

“Not since 9-11.” She said impatiently.
“Ok,” I said annoyed, “We will go outside and enter through the public entrance.”
“Sorry” a Capitol Police officer piped up, “You may only enter the Capitol in a tour or when accompanied by a staffer!! Regulations"
"That's ridiculous. I have already passed through a Magnetometer, and I am about to go through another, all for the privilege of seeing where the heart of my government works!”

Then she killed me. The little old lady in the red jacket stabbed me right in the heart. She said the exactly wrong thing to say to any real American (of which I am beginning to think there are few in Washington and fewer yet on Capitol Hill)

She said, “It’s for our safety, yours and ours…It’s better than being bombed.”

I looked at her hard for a moment. A thousand thoughts ran through my mind, such as:

1. I would rather be dead in the name of liberty than be herded like a sheep and led quietly to my slaughter.

2. How safe are we if can’t travel through 3 floors of a building and walk in its basement without being x-rayed at every turn.

3, My death would be a small price to pay for the opportunity to keep Americans free to walk through the halls of their government and have the same access to their lawmakers as the lobbyists and the corporate donors have to them.

4. I’m From Freaking NYC the number one city on the terrorist Hit parade, and even we’re not this freaking paranoid.

I looked at her as a crowd of people, staffers and Capitol Police began to gather. I did not feel that getting arrested was a good way to stand up for liberty while I was in charge of safeguarding a 17 year old. So I said in a quiet but strong voice,

“No, it is not better than being bombed, but for today, that lousy explanation will have to do. How sad it is that none of you know the words of Benjamin Franklin.”

And I took Lara’s arm and headed back to the elevator from whence we came. Sadder in the knowledge that a bearded "religious" fanatic, bent on destroying the fabric of our democracy had succeeded today.

When Clinton closed off Pennsylvania Avenue to motor vehicle traffic for the 2 blocks in fromy of the White House, I though it unfortunate, but as his family lived there, I felt like it was probably for the best. The man had their safety to worry about. My freedom to go to the president was not injured by the move, only my ability to drive by the house.

This is completely different. This is a travesty. It is an assault on democracy, perpetrated by our own government and its leaders who are too scared of some raging maniac hiding in a mountain, to remember why we elected them to office in the first place.

So back we walked out of the door of the Cannon building. We called our driver, and I asked him to drive us to the World War II Memorial. I needed to be around men and women who understood what the expenses of freedom are. We had to settle for their ghosts. It will have to do, for now…

Why Can't Prisons Be Made Safe For Prisoners: The Prison Litigation Reform Act and Qualified Immunity, Two Concepts That Are Bad Public Policy

The Volokh conspirators are having a lively debate about governments inability to stop or decrease prison rape. The following is a reprint of my input into that debate:

Enforce 1983 as written. NO Qualified Immunity, No Prison Litigation Reform Act. Trial lawyers can and will force government to do what it is supposed to do.

In response to troublesome nusiance suits brought by inmates, Congress passed a reform act that said they had a three stike rule. Bring a suit without merit 3 times and you can't bring one anymore without court permission. The concept was supposed to be to stop these ridiculous nusiance suits.

Except until you get to the part that says even if the prisoner is the prevailing party, the lawyers cannot get a legal fee beyond 1.5 times the amount granted to the prisoner. The point of that? Get those pain in the ass lawyers out of investigating prison misconduct by the government. The result has been a wholesale reduction in the number of suits bought by LAWYERS (who presumably know a good cause of action from a frivolous one.)It is a ridiculous rule and needs to be over turned. It can result in a lawyer working on behalf of all prisoners, getting them a real change in circumstances and because the monetary damages in the case are small or hard to quantify, the jury changes the rule or condition but only give the plaintiff Ten($10.00)Dollars. The attorney may put literally 300 hours into the trial and appeal of the case. His fee for all that work? Fifteen (15.00)Dollars.

The attorney's who bring these suits are ususally small and solo lawyers. They cannot afford to take a bad one. The law discourages outside legal experts from looking into the conditions of prisons. That renders these institutions unsafe. The law passed by Congress is bad public policy and flies in the face of the fee switching statute that accompanies civil rights cases under 42USC 1983, 1988.
Get rid of the Prison Litigation Reform Act (as to attorney's fees) and the Qualified Immunity defense and watch the prisons really become what they should be...Correctional institutions.

Dean Arron Twerski Resigns as Dean of Hofstra University School of Law: Dean Cites Health Concerns

Aaron Twerski has been Dean of Hofstra University School of Law for two years. He has been part of Hofstra Law's family for far longer. He served as an Intrim Dean, and as a full fledge Dean. He was there at or near the beginning and after a move to Brooklyn Law School (for family reasons more than anything)he returned to Hofstra to begin to rebuild the school after a couple of disasterous years that saw the school move into the lower tier of the US News & World Report rankings.

Since his return, Hofstra has been back on track: Expanding the faculty, strengthening the curriculum and getting its name out in front of law firms and prospective students. Hopefully the new leadership will move things in the same directions.

I had the pleasure of taking "Products Liability" with Dean Twerski. (Trust me the pleasure truly was all mine.) Twerski brought scholarship, knowledge and a unique style to teaching the subject. Generous with his time, he could explain the most arcane concepts ( Res ipsa loquitur anyone?) and make it come alive. Noted for his ability to strategize trials and more importantly pre trial techniques, He was sought out by the best Civil defense firms in the country. Many of my collegues benefited from the law firms he was able to attract to the school.

When he left to go to Brooklyn, a large part of the Hofstra Law heart went with him. Moreover, when he returned two years ago, there was an immediate electrical charge that went through the alumni students and staff.

In his letter to the Alumni, Dean Twerski cites his recent quadruple bypass and the commute from his Hassidic community home in Brooklyn for his decision to leave. It is amazingly sad that a man with so much "heart" could be felled by his own.
In his letter, he says that "I will always take pride that I was able to b part of (Hofstra Law's) glorious history..." In fact, it is we, the alumni and students as well as the faculty, staff, and Administration, that will always take pride and be thankful for the fact that you are part of our History, and our lives.

"Zol zayn mit mazel" Professor, and may G-d bless you and your family.

Relaunch of Long Island (Criminal) Trial Law Set For Monday: Let me Introduce You To My New Blogging Partners

I am very excited to announce that my formerly solo blog Long Island (Criminal)Trial Law is back and going to be better than ever. If you are reading carefully, you saw the word "formerly" in the last sentence. That is because LICTL is becoming a group blog. Two of my Associates, Amy Hsu and Diane Petillo are joining me. I would like to introduce these talented women to you.

Diane Petillo is our Sr. Associate and leads our Civil Litigation Department. Practicing in the personal injury field for most of her 13 year career, Diane has been a plaintiff and defendant's lawyer. For the last year, she has concentrated her work on civil matters as diverse as mistreatment of prisoners to the devastating injuries caused by motor vehicle accidents where drivers were not taking sufficient care of themselves or of their vehicles. Diane's case load is extremely diverse. She can be working on behalf of a victim of government misconduct one day, and working on behalf of a wrongfully accused corporation on a civil Rico case the next. The Defamed, victims of Assualt, False Imprisonment, Sexual Abuse; Whistleblowers and those discriminated against because of their religious beliefs, race, age or sex, all wind up in Diane's office. As a co-blogger, I expect to see Diane writing on a lot of the cases and issues that appear in her case load. A hard nosed trial lawyer (as opposed to a litigator, trial lawyers actually try cases)Diane is a good teacher of trial techniques as well. I look forward to her teaching posts.

Amy Hsu is another associate in our Office. Amy is in charge of Appeals. In our offices we all try cases and we all write motions and appeals. It's just that Amy writes better than most. Formerly a law fellow for the Honorable William Donnino, This year's NYS Bar Association's Vincent Doyle award Reciepient As Outstanding Jurist, Amy has studied and learned at the elbow of one of NY's finest trial judges. Since joining our firm in September of 2005, Amy has tried two cases to verdict and sucessfully achieved dismisals in many others, thanks to her well crafted and ingenious motion practice. In addition to her work here at The Law Offices of Anthony J. Colleluori & Associates PLLC Amy works on legal articles and CLE Programs for the Nassau County Bar Association's Academy of Law. She is fluent in Mandarin Chinese and understands Taiwanese as well. I look forward to her insightful commentary on criminal cases.

As both young women are new to blogging, I expect we will be starting out slowly but I hope you will find nearly daily blogging by members of our team soon.
Please encourage these young writers and comment on their work as often as you can.

The Work Life Balance in Law Firms. Two Sides of the Debate.

Juxtapose these two blog posts by two of my favorite bloggers and lawyers, Dan Hull over at What About Clients, and Nicole Black over at Sui Generis.

How do you serve clients and still not burn out faster than a Grucci fireworks display? I'm a certified baby boomer. I am driven, I love the law, and I sacrificed a lot of family time for success. I am here to say that while I enjoyed pretty much every minute of it, I gave up too much. Fortunately I learned my lesson early, not so much for me but for staff. The issues are bigger than one post but I will deal with two of the issues here. One is how do I become a good lawyer. Two is much do I need to earn to be happy.

Now of course the second issue is troubled by what I consider to be ridiculous debt caused by tuition and education loans. A kid out of law school who had to finance the whole thing has to earn at least Sixty thousand a year plus to be able to afford the tuition repayment, rent, a car, and basic insurance. He can forget about saving for his future. Fortunately he can put that off for a few years.

On the other hand, how much can one expect to earn if they work a regular work week. What is a regular work week for a lawyer? How much of an outside life can a lawyer expect when just for development of skills he needs to put in a lot of time.

Learning the law, does not happen between 9-5 or even 8-6. It is the reading and working done when the phones stop ringing and the partners stop screaming that permits the opportunity for learning to take place.

How does a young lawyer learn. Well CLE is part of the equation, but frankly the advance sheets and the daily bar journal is the first thing to turn to. Now I never trained transactional lawyers so I can only speak for trial lawyers, but reading transcripts of trials and issue spotting the appellate issues is a good tool in learning how to put a question, and on how to object and preserve a record.

Reading non legal magazines of the right type help too. Jurors do not usually read the Review of Books. They are not likely to read the Times Sunday cover to cover either. They read the Daily News or Post, a tabloid, People magazine, Ebony, Jet, Woman's Day, Cosmo, Maxim and Playboy, GQ, Time or Newsweek and Sports Illustrated. These are a few of what trial lawyers should be reading each month. Hanging around the office doing work that most lawyers hate doing, like trial briefs and reviewing the Casemap is a good way of prepping too. Of course looking on-line and reading at least a few of the blogs is also important.

The young lawyer should expect that Monday through Thursday will be 10-12 hour days. I like to see them alternate 10 one day 12 the next etc. Thursdays will also be a chance to go to bar and other oganizational meetings. Friday is a day of relaxation...after 4pm. Saturday or Sunday is meant for renewal but a few hours either in the office or at home working on self improvement or on office work should be required. The key to this is that the lawyer should want to do this. Part of the problem of course is that as someone points out (I think it was in Nicole's post) a lot of lawyers only see that the work they do at 25 years old brings a reward of more work after you become a partner. That is where the law firm culture comes in.

In my firm, there is a very low (compared to most firms) requested billable hour standard. I seek One Thousand Two Hundred Fifty Hours (1250) of billed time. I also expect the associate to be active in one or two Bar association activities and be working up the ladder there. After 3 years, belonging to a local business or other networking group (at church, in the community, a PTA) should also be part of the firm supported marketing approach. Writing and lectures are becoming a part of the regime also.

A key to this however is that, as a partner, I do not try to over leverage the work of the associates. In other words, I do not try to retire on the backs of my staff. I expect them to work. I may actually get out less work than they do, because of my rainmaking responsibilities. I cannot and do not want to so out-earn them that they feel every minute they spend working extra is so that I can go home with a fatter wallet.

How do I do this? By keeping a fair ratio between what I earn as a partner and what the lowest paid associate makes. Hence I think a Six to one (6:1) ratio is not only fair but gives the associate something to aspire to. It is also a way to not become a "You make what you eat" law firm. Rain is not over-appreciated and toiling uselessly and becoming a "stacks troll" isn't either. Family time is up held and no one has to worry that because they went to a football game to see their brother play that they are losing a spot on next years bonus roll.

When it comes to women, there is another thing that needs to be addressed and that is their traditional mother role. I would not steal a child from his mother, nor would I want one of my staff to lose the opportunity to become a partner, a lead trial lawyer, or any other opportunity because she chose to have and care for her child. Hence in my office, you do not lose your turn in line for partnership if you take time to have a baby, you are considered at six years out and at least two years with us, even if you had to stop a time or two to have a child. I am experimenting with an in-house nursery idea right now, and of course home-telecommuting.

Men too need time however, and their fuses should not be forgotten. Hence I also look to help my male attorney's take time off with their young ones and if employees do not have children, then childless employees plan for a sabbatical of at least four months after 7 years with the firm. There is no point in not taking it and it can only be put off for good reason and only for a period of 18 months.

Taking care of one's spirit is important. I am looking forward to memberships in gyms and personal training as a perk some day. I am also going to pepper the bonus's this year with Massage and Spa gift certificates.

I think that while dedication to clients is a very important obligation of a lawyer, one cannnot give much to that client, if he has nothing in the tank. I do not agree with Dan, work-life balance is an issue for partners. It didn't used to be. It has led to the sloppy lawyering and the dissatisfaction of so many promising attorneys. It is time we not only ask "What about Clients" but we ask simultaneously "What about Souls."

Sex, Lies & Video Tape Equals Blackmail: The Making of the Next Long Island Sex Scandal

I am sure many of my NY and Long Island Readers (all 5 of you) have seen the headlines (here,here, here,here and on the TV as well)
The deal was easy. Meet lonely hearts on the Internet through groups like Adult Friendfinder or Craigslist, engage in sex acts taped on the sly, build a relationship with the victims so that you know lots of stuff about them, then tell them to pay up or you're gonna give the stuff to their kids or bosses or spouses.
Not a pretty sight.

I have been involved in the representation of people in the adult entertainment community for my whole career. It is not glamorous work nor is it very lucrative. It is however a part of the world that desperately needs legal representation. Because of the mores of the world we live in, these people are very susceptible to being abused, attacked and sometimes blackmailed. I have come to know the actors, the dancers, and the strip and swing club owners. I have been present in the middle of the nights at the raids on their clubs, and I have watched this group of people abused by police, prosecutors and the press, in the past. I have been at the side of their hospital beds as they suffered otherwise alone because they had been abandoned by family and friends.

Earlier this week, Blackmail came to haunt the sex community on Long Island. Without accusing or condemning (yet) the accused blackmailers, I can say that as word of the tapes got out, a general panic arose in the swinger community. It seems one of the defendants had over 100 hours of tape of people having sex with his "partner." It further seems that these defendants have been attacking the "opportunity" in many different forms. My office recieved phonecalls from people who knew these people and from friends and family members who called on behalf of others who were too scared to call themselves.

On Thursday February 1st I got a call from a reporter, who is aware of my long term representation of this community. He asked me what I knew which, at that time, frankly wasn't much. I knew people were frightened and that they wanted to know if the Police would come to their door or their businesses. They were afraid of being victimized twice. Once by the blackmailers and then by the police.

The people I spoke to were sick to their stomachs. They were worried about disease and they were worried about breaking the hearts of people they had no intention of hurting. Some had become attached to the accused blackmailers. They thought they were dealing with a friend and lover, the pretend people that the two accused said they were. These folks felt more than just fear, they felt a sense of loss and disbelief that they could be taken in.

I agreed to speak to the press at that point, so that others would know that they were not alone. I also spoke to the media so that these same victims would know that there was a law office they could come to that would not judge them and would be there for them should they chose to cooperate with the police, or decline to do so.

I have not accepted one cent from anyone who has called. I do not intend to accept one cent. I will, if I am asked to do more than advise these folks on their legal rights. Many may have a right to sue the individuals involved in deceiving them. I will take that case if I find that there is a chance to make these victims whole. It is what I do.

Under the guise of "No Good Deed Goes Unpunished" I have read that I am "just another ambulance chaser". I want to point out a few things to the people saying that about me:

1. I did not hold a press conference, or send a press release or even call one single reporter to speak to this case. They each called me, ask them. Most of them either had covered other cases I had worked on and knew I worked on this type of stuff, or they had spoken to reporters (or read their articles) and were following up on their leads. There are just not a lot of lawyers who will admit to handling these cases.

2. I have not asked for a penny from anyone.

http://www.nypost.com/seven/02022007/news/regionalnews/mystery_vips_in_sex_trap_regionalnews_kieran_crowley_and_cynthia_r__fagen.htm

3. That I have no purient interest in this case. In a lifetime of working with this community, I have seen all that I ever wanted to and far more, I am concerned that the people who are involved, are not preyed upon by ANYONE. Bad guys or good guys.

4. My family suffers as much as anyone does when I decide to take on cases like this. The get teased and sit through the funny looks and the "dirty jokes" we hear when we go to the diner or pizzaria. My family however knows that, especially in a case like this one, my active participation could mean the difference between someone hopeless, killing themselves and that same person going home to their family that night. They didn't sign up for the duty, but they carry it out really well and with a lot of understanding and I love them for that.

I do not have any idea how this will shake out in the end. I know that if we continue to worry about who is on the tape rather than bringing the case to justice, that we are just a bunch of nosy body gossips.

If the press wants to cover a story, they and you should be asking me about the medical dosing abuse at the Nassau County Correctional Center or about the abject torture of female prisoners in the Federal Medical facility in Texas. They can ask about people who have paid their debts to society only to be forced into a life of crime by otherwise law abiding people who feel no guilt over breaking the law to discriminate against them.

We can talk about a lot of things. Who has sex with whom should not be one of them.

No Honor In The Bush White House: Charles "Cully" Stimson Resigns Over Remarks About Guantanamo Defense Lawyers

Cully Stimson Resigns. Good riddance.
A couple of weeks ago, Deputy Assistant Secretary of Defense for Detainee Affairs Charles "Cully" Stimson intimated to America that some of the volunteer lawyers defending the terror suspect on Guantanamo Bay were taking money from terrorists and their sympathizers and that Corporate America should force law firms involved in the volunteer efforts

"to make those law firms choose between representing terrorists or representing reputable firms...."

When I first heard the remarks, I thought "oh another General with foot in mouth disease." I was wrong. Stimson is a 1986 graduate of Kenyon College and a 1992 graduate of George Mason Law School. He is a former prosecutor, and even did some defense work. No "Cully" was not just a military guy who didn't get it. It was far worse. He is a lawyer who doesn't get it. In fairness to Stimson, he apologized about five days after his intemperate remarks (sorta. He said he didn't mean it.)

If you read Stimson's letter to the Washington Post, and some of his other statements you begin to see that he is not so much as lying as he is splitting hairs the way that the rest of the Bush White House and Justice (Just Us) department does it.

You see, we learned in our Social Studies and History classes that the bill of rights included rights which were basically owed all people. The Bushies must have had a different textbook. We were told that we were going to bring "American style" democracy to the middle east. We all thought that we were going to keep it here too. But the Bushies had other ideas. They split hairs. We have a war on Terror, but if you are captured in that war you are not a prisoner of war, you are an "enemy combatant." That means that the rights we want you to have in your country. and the rights we say we have here, you can't have. Confused? Join the club.

But then those pesky lawyers started waiving that pesky Constitution and those really pesky amendments at the Bushies, and well you know, if you aren't one of them, well your just a traitor. Never mind you are a military hero or even a regular GI Joe. Just because you actually served in a war you can't know more than the all but draft dodging President and Vice President. If you are a lawyer, you are a problem in the Bush White House. "Rights? We don't need no stinking rights"

If you are in favor of everything every soldier who has died in battle believed he was fighting for, YOU ARE THE ENEMY. So when Cully made his statement about lawyers he had the Bush White House game plan right there. Lawyers are bad, people who fight the administration are anti-American and then he said it. The lawyers who fight for free in the highest service to the bar and the law are so un-American that any American CEO who hires them will fire them. Unreal. Sad even.

The White House immediately smelled a fiasco and so they did exactly what they always do. They threw Cully under the bus and ran from his statement. He had so many tire tracks on him evenMike Brown thought he was road kill. So Cully has now been hounded out. He quit. Underfire.

But there might be hope for Cully Stimson. He once had a sense of his job. He may even be prescient. In an Article in the Kenyon Alumni Newsletter aptly entitled "In the Eye of the Storm" Cully Stimson is quoted as saying:

"As the primary policy advisor, I am the focal point in the department of defense for all things related to detainees," says Stimson. "I want to make sure we are treating detainees everywhere in Department of Defense custody humanely, consistent with our values, and our domestic and international legal obligations as a country. I have an enormous weight on my shoulders. I have to choose my words carefully because I am a public figure on a very, very controversial topic."

Too bad he didn't frame the article and read it every morning. Maybe the weight got to heavy for him. Either way, he is just a microcosm of a far bigger problem. We have a President so out of touch with his electorate, and the laws of his nation, that, short of impeachment, there is no chance we will not be embarrassed by him or one of his minions again.

Our February Newsletter Is Now Available

Our Newsletter (written by the good folks at Findlaw) is available by clicking this link.This months edition features the rights defendants have in criminal cases.
Here is my introduction:

The Law Offices of Anthony J. Colleluori & Associates wishes you a Happy New Year!!
We are proud to distribute the Criminal Defense E- Newsletter each month to our friends and clients. This month's issue focuses on the Rights of A Person Accused of a Crime. The Criminal Trial is compelling and interesting but fraught with twists and turns. Criminal trials are very complex and should only be handled by the most experienced of attorneys. A conviction for a crime carries with it potential jail, loss of income, business and not the least, loss of reputation.

Civil penalties can cost a party loss of their home and valuables. Other collateral consequences of a conviction could result in the client's deporation or force the client to permanently have to register with the state. It can even keep a client from living in certain towns or villages. It can result in a judicial order keeping convicted people from their children. It could result in the loss of their professional license as well as a loss of one's driving privileges depending what the case is about.

Under the Federal Sentencing Guidelines, Courts are sending more and more business people to prison for longer periods of time than ever before. Moreover, the person convicted of a crime is often denied employment and other opportunities including the right to pursue a career in Law, medicine or public accounting. State laws have toughened recently as well, with more mandatory minimum jail sentences and an increase in jail as a whole.

Our office has successfully defended many cases involving allegations of crime. We have also been in the forefront of law firms that seek remedies for those unfairly or falsely convicted. We are very adept at working on the investigation of criminal cases. Click the link for information on Where to call if your loved one is under arrest in NY or on Long Island. Please visit our web site for more information on Fraud, and Criminal Defense or to contact us by clicking on this link

Hope you will enjoy this edition of the Newsletter of the Law Offices of Anthony J. Colleluori and Associates PLLC